Real perpetrator caught in Texas sex-assault case that led to wrongful conviction

Negligence all round

All the while that Ricardo Rachell, wrongfully branded a child predator, sat in jail accused of assaulting an 8-year-old, similar attacks on young boys in his Houston neighborhood continued. Rachell churned through the system, from his arrest in October 2002 to jail to trial and finally to prison with a sentence of 40 years.

Still, more children were assaulted. An 8-year-old in November 2002. Another five weeks later. And a 10-year-old in October 2003. But in 2003, records show, police closed in on a registered sexual offender, Andrew Wayne Hawthorne, who lived less than two miles from Rachell and who later pleaded guilty to assaulting three boys. But none of this, according to the Houston Chronicle's review of court and police records, led anyone to question whether Rachell was the wrong man. Not two police investigators working in the 30-officer division that pursued both cases. Not prosecutors. And not Rachell's trial attorney, who dismissed his client's pleas to investigate the other suspect.

Last week, after more than six years in custody, a judge ordered Rachell, 51, released because new DNA evidence cleared him of any involvement in the assault. Instead, the evidence points to another man as the attacker - though prosecutors have repeatedly refused to identify him, or say whether Hawthorne is the man, citing a continuing investigation. Houston police officials also have declined to discuss Hawthorne's conviction, referring questions to the district attorney handling Rachell's case.

Emma Rodriguez, the HPD sex crimes officer who investigated Hawthorne in 2003, said Wednesday she could not talk either because "it is going to be connected to that other case." Hawthorne is now in prison in Amarillo, serving a 60-year-sentence.

The sexual assaults on children that followed Rachell's Oct. 23, 2002, arrest brought panic to the south Houston neighborhood clustered near Scott Street and Old Spanish Trail. Business owners plastered their stores with police sketches of a suspect. Apartment managers warned their tenants of the predator at hand. FBI officials and U.S. Rep. Sheila Jackson Lee held community meetings. And at least one news story quoted HPD officer Lisa Clemons, the same officer who arrested Rachell, on the details of the attacks. She also has declined comment.

Rachell sent a copy of that story to his trial attorney, Ron Hayes, who acknowledges he received it in December 2002 - six months before Rachell was to face a jury - but decided not to investigate. "I received from Mr. Rachell the newspaper article about other sexual assaults," Hayes said in an affidavit provided for one of Rachell's appeals. "Since there were very few similarities and connection between the sexual assaults and the sexual assault Mr. Rachell was accused of committing, I did not believe that this information from Mr. Rachell merited much investigation."

In their investigation, HPD officers noted similarities among the unsolved attacks. "We finally recognized a pattern," Rodriguez, the HPD juvenile sex crimes investigator, told reporters Oct. 25, 2003. "Through our research we discovered a bike was being used in all of the cases, and then things started building, started looking familiar." She also noted the attacker's use of a knife and promises of money for doing small doing odd jobs - patterns also present in the attack for which jurors wrongfully convicted Rachell, evidence now shows. Two weeks later, on Nov. 12, 2003, with the help of DNA evidence from one of the unsolved attacks, police arrested Hawthorne. They considered him a suspect in five attacks, but only charged him in three.

A registered sex offender, Hawthorne's DNA profile already was in a state database from a case in 1992. Facing a charge of aggravated sexual assault of a child, Hawthorne accepted a deal and pleaded guilty to indecency with a child. He served eight years in prison.

In Rachell's case, biological evidence that could have definitively cleared him never was tested before his conviction. No one has been able to explain why. His trial attorney insists that he had no idea that any such evidence existed. The assistant district attorney who prosecuted the case, Jimmy Ortiz, now a defense attorney, has not returned multiple phone calls seeking comment on the case.

Prosecutors overseeing the effort to officially overturn Rachell's conviction have said the rape kit and victim's clothing always have been available and should have been tested then - on the request of either the prosecution or the defense.

Records show that Clemons, the officer who led the investigation against Rachell, checked a sexual assault kit and a bag of clothing into the police property room on Oct. 21, 2002, one day after the attack. Less than two months later, HPD shut the DNA division of its crime lab, amid concerns about the accuracy of its work. The evidence that Clemons submitted to the property room never was mentioned until last year, when Rachell appealed for DNA testing. That evidence, which ultimately cleared him, was still sitting in the property room, records show.

Mayor Bill White said Wednesday that he will review HPD's investigation of the case, adding, "I don't have a complete briefing of the chronology of that particular case, but I will get one and review it."

In the Hawthorne case, it was the FBI that processed the DNA evidence that led police to their suspect. With the HPD DNA lab closed and the continuing assaults on children, federal analysts stepped in. "If our lab had been up and running as it should have been, we could have had this processed earlier," Acting Police Chief Joe Breshears said then. Once confronted with the DNA evidence, Hawthorne pleaded guilty and accepted a 60-year sentence. He is at the Clements Unit in Amarillo.

Original report here



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